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Piru Pramanik and anr. Vs. Pabna Dhanabhandar Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal427
AppellantPiru Pramanik and anr.
RespondentPabna Dhanabhandar Co. Ltd. and ors.
Cases Referred and Biraj Mohini v. Sarala
Excerpt:
- .....common questions of law and fact and were tried together in both the courts below. in one of these rent suits, namely, rent suit no. 2616 of 1934, the plaintiffs are the two banks,-the pabna dhanabhandar co., ltd. and the pabna bank ltd. and certain other persons who may be called the pakrashis and all these plaintiffs jointly represent the entire putni interest in mouza suratali in the district of pabna. the rent claimed was for lands held by the defendants in the suit within the said mouza. in the other seven suits one himangshu jyoti majumdar figured as the plaintiff and he claimed to recover rents from the tenants-defendants in respect of lands held by them in the same mouza suratali on the basis of his rights as a darputnidar in the mouza under the putnidars mentioned above. the.....
Judgment:
ORDER

B.K. Mukherjea, J.

1. The eight analogous Rules arise out of as many suits for rent which involved certain common questions of law and fact and were tried together in both the Courts below. In one of these rent suits, namely, Rent Suit No. 2616 of 1934, the plaintiffs are the two Banks,-the Pabna Dhanabhandar Co., Ltd. and the Pabna Bank Ltd. and certain other persons who may be called the Pakrashis and all these plaintiffs jointly represent the entire putni interest in mouza Suratali in the district of Pabna. The rent claimed was for lands held by the defendants in the suit within the said mouza. In the other seven suits one Himangshu Jyoti Majumdar figured as the plaintiff and he claimed to recover rents from the tenants-defendants in respect of lands held by them in the same Mouza Suratali on the basis of his rights as a darputnidar in the mouza under the putnidars mentioned above. The defence taken by the tenants in all these suits raised a common point which turns upon the question as to whether the darputni interest claimed by Himangshu and on the basis of which he instituted the seven suits had any legal existence.

2. The contention of the tenants in these seven suits was that this darputni which was alleged to be held by the mother of Himangshu under his father as putnidar was a collusive and benami affair and that in any event it ceased to exist after the sale of the putni interest. If this darputni interest was not subsisting, Himangshu obviously would not have any right to realize rent from the tenants who would be bound to pay rent to the putnidars direct. Curiously enough, the defence taken by the tenants in suit No. 2616 of 1934 where the putnidars were the plaintiffs was just the opposite and it was contended that the putnidars had no right to sue inasmuch as the darputni of Himangshu was still subsisting and rents were payable to the latter. It may be mentioned here that Himangshu was not a party to Rent Suit No. 2616 of 1934 and the plaintiffs in that suit were not impleaded as defendants in the seven suits of Himangshu. The trial Court came to the conclusion that the darputni interest of Himangshu was a valid thing and was not annulled by the putni sale and consequently the putnidars were not entitled to sue the tenants for rent. On this finding the Munsif dismissed Rent Suit No. 2616 of 1934 and decreed the other seven suits in which Himangshu was the plaintiff. The judgment is dated 15th June 1935.

3. Against these decrees there were eight appeals taken to the District Judge of Pabna. It may be stated that all these suits were valued at less than Rs. 50 and the munsif who decided them was invested with final powers under Section 153, Ben. Ten. Act. It is also not disputed that no question was raised or decided in these suits which could make the appeals competent under the provisions of that section. No such objection was, however, taken by the respondents to the appeals and the learned District Judge heard these appeals in the ordinary way and being of opinion that the questions of merger and annulment of the darputni interest were not properly decided, sent the case back for re-hearing on fuller materials. The cases were re-heard by the trial Court and judgment delivered on 25th November 1935. The Munsif decided the question of merger against Himangshu and held that the darputni interest merged in the superior putni right when Himangshu himself held both these interests after the death of his parents. Consequently, when the putni was sold there was no subsistence of the darputni interest. On this view of the case the munsif dismissed the seven suits of Himangshu and decreed the other suits where the putnidars were the plaintiffs. Against these decrees again there were appeals preferred to the Court of the District Judge of Pabna, and objection was now taken by the respondents, who were appellants on the previous occasion, that the appeals were incompetent. The Judge agreeing to the contention treated them as petitions of revision under the proviso to Section 153, Ben. Ten. Act, but in the end refused to interfere observing that the entertainment of the appeals on the previous occasion which were not entertainable in law without an objection from the other side had led to certain anomalous results, and this Court was the only proper Court which could end the tangle and adjust the rights of the parties.

4. Himangshu, Jyoti and the defendants in Suit No. 2616 of 1934 have now come up in revision before this Court. Mr. Jatindra Nath Lahiri who appears in support of these rules has contended before me that the decrees passed by the munsif being final under Section 153, Ben. Ten. Act, from which admittedly no appeal lay the order of remand passed by the lower appellate Court as well as the subsequent decrees passed by the munsif are all void for want of jurisdiction and should be set aside. Mr. Krishna Kamal Maitra who appears for the opposite party in some of these rules, on the other hand, takes up the position that even though the appeals were incompetent, yet there was no lack of inherent jurisdiction in the lower appellate Court which, at the most, exercised the jurisdiction in an irregular way. It is said that the petitioners who did not raise any objection to the competency of these appeals cannot now complain of these orders and that in any view of the case there being no merits on the side of the petitioners, it is not a case where I should interfere in exercise of my revisional powers under Section 115, Civil P.C. Mr. Surajit Chandra Lahiri, who appears on behalf of the parties in some of these rules, supports the contention of Mr. Maitra.

5. It is a proposition too well established that if a Court is not invested with jurisdiction to hear and determine a matter, this usurpation of authority for which there is no warrant in law would make all decrees and orders mere nullities which could be set aside or declared void as the circumstances might require: Rajlakshmi Dasee v. Katyani Dasee (1911) 38 Cal 639, It is also well settled that the authority or jurisdiction of an appellate Court to review or revise a decision of the Court below must be given by a statute or an equivalent authority. The Judicial Committee laid that down clearly in Meenakshi Naidu v. Subramania (1888) 11 Mad 26 and this was repeated in Rangoon Botatong Co. v. Collector of Rangoon (1913) 40 Cal 21 where the observation of Lord Bramwell in Sandback Charity Trustees v. North Staffordshire Railway Co. (1877) 3 Q B D 1 was quoted that:

An appeal does not exist in the nature of things. A light of appeal from any decision of any Tribunal must be given by an express enactment.

6. Where there is no appeal provided for by law a consent or waiver on the part of the respondent could not invest the appellate Court with the jurisdiction it did not possess: see the observation of the Judicial Committee in the case reported in Meenakshi Naidu v. Subramania (1888) 11 Mad 26.

7. In these cases it is not disputed that under 8. 153, Ben. Ten. Act, no appeal lay to the District Judge from the decision of the Munsif dated 15th June 1935. But it is contended by Mr. Krishna Kamal Maitra that there is no absolute want of jurisdiction in this case as was the matter in Meenakshi Naidu v. Subramania (1888) 11 Mad 26 inasmuch as Section 153, Ben. Ten. Act, does allow appeal in certain cases which come within the purview of the proviso to the section. The Court, therefore, had jurisdiction to entertain the appeals provided certain conditions were fulfilled. It may be irregular to exercise jurisdiction where the conditions are really absent, but the assumption of jurisdiction is not wholly unwarranted and the decision cannot be said to be a nullity. The consent or waiver on the part of the respondents, it is said, will cure the irregularity in such cases. The argument, though plausible at first, is really of no assistance to Mr. Maitra's clients in the present case. It is true that every Court has jurisdiction to hear and determine a case and when its jurisdiction is challenged it is its duty to determine the actual existence of things on which alone it can assume jurisdiction. If it decides that it has jurisdiction then that decision would be binding, as a Court has always the jurisdiction to decide rightly or wrongly, and it would not do to say that the conclusion was wrong. This principle has been applied in many cases of which the cases in Rashmoni Dasi v. Gunada Sundari Dasi AIR 1915 Cal 49, Girwar Narayan Mahton v. Kamla Prasad AIR 1933 Pat 104 and Biraj Mohini v. Sarala : AIR1937Cal88 may be taken as types. If the appellate Court had decided that the appeals were competent when they first came up for hearing, then that decision, unless set aside by any higher Tribunal, could not be attacked at a sub-sequent stage of the proceeding, even if the decision was wrong. But when, as here, there was no decision by the appellate Court on this point, I am unable to hold that mere inaction or want of objection on the part of the respondents would prove the existence of things, the existence of which alone would make the appeals competent under Section 153, Ben. Ten. Act.

8. In my opinion, therefore, the remand order passed by the District Judge on 14th September 1936, and the decree passed by the lower Court on 25th November 1935, after remand and the order of the District Judge dated 7th May 1936, affirming the same must be set aside and the original order of the Munsif dated 15th June 1935 should be restored.

9. I am not impressed with the argument of Mr. Maitra that I should not interfere in revision in these cases, as the decision of the Munsif after remand is a good and proper decision. The decision of the Munsif after remand is based entirely on his finding on the question of merger which was not even properly pleaded in the written statement. In my opinion, in simple rent suits, where persons claiming conflicting title are not even made parties, it is very much improper to allow this complicated question of title to be raised and tried. I would certainly have set aside the decision of the Munsif passed after remand on this ground alone, even if I had not held that the proceedings were void for want of jurisdiction, I will make it clear, however, that the original order of the Munsif will stand only for the purposes of these rent suits. It will not preclude the opposite party to raise the question of merger, if they are so advised, in any subsequent litigation. Subject to these observations the rules are made absolute. Under the circumstances of the case, I will make no order as to costs.


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